Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
HIPAA and State Discovery Practices
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a complex commercial statutory scheme aimed at regulating the health care industry's use and storage of electronic health information. In drafting this legislation, Congress expressed concern that health care entities must assure their “customers,” including patients, “that the integrity, confidentiality, and availability of electronic protected health information they collect, maintain, use, or transmit is protected.” 68 Fed. Reg. 8334 (Feb. 20, 2003). HIPAA (Pub. L. No. 104-191) is codified in myriad sections of 18, 26, 29, and 42 of the United States Code. Using the Public Law Number cite and referring to the most recent edition of the United States Code Annotated Tables periodical will permit the reader to pinpoint these scattered United States Code sections.
Because of HIPAA's vast scope and because of its wording, that it “shall supercede any contrary provision of state law,” attorneys have begun to look to HIPAA as a means to preempt unfavorable multi-state discovery practices involving personal injury plaintiffs. An example of such a discovery practice that has recently come under fire is the practice of conducting ex parte interviews of a personal injury plaintiff's health care providers. As this article demonstrates, this practice is a time- and cost-effective alternative to conducting multiple, and potentially fruitless, formal depositions of each and every health care provider potentially involved in the treatment of a personal injury plaintiff. The practice is also currently employed in as many as 25 states, as well as in the District of Columbia.
This article specifically focuses on why HIPAA does not preempt the multi-state practice of attorney ex parte interviews with a personal injury plaintiff's health care providers. First, we examine the multi-state perspective on this discovery practice, with an emphasis on the policies in support of and against its use. Second, we focus on the scope of HIPAA's preemption language, demonstrating that Congress never intended for HIPAA to preempt multistate discovery practices employed only after personal injury plaintiffs put their medical conditions in issue. By focusing on this single example of ex parte interviews, it is our hope to keep practitioners informed about HIPAA's relationship and intended co-existence with well-conceived state law discovery practices.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?